Corcoran Municipal Code Ch. 6 Cable Television

The City Council finds that the development of cable television and communications systems has the potential of having great benefit and positive impact upon the people of the City. Because of the complex and rapidly changing technology associated with cable television, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. (Ord. 514 N.S., 1-17-1995)

For the purpose of this Chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

BASIC CABLE SERVICE: The lowest priced level of service which includes the retransmission of local television broadcast signals (as authorized) and public, educational and governmental access channels.

CABLE SERVICE: The transmission to subscribers of video programming or other programming services and subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CABLE SYSTEM OR SYSTEM: A system of antennas, cables, wires, lines, fiber optic cables, towers, waveguides or other conductors, converters, pedestals, equipment or facilities, used for distributing video programming to home subscribers, and/or producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of signals.

CHANNEL OR CABLE CHANNEL: A portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering either one National Television Standards Committee (NTSC) video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals.

CITY: The City of Corcoran.

COUNCIL: The City Council of Corcoran.

DWELLING UNIT: Any building or portion thereof which contains living facilities, including provisions for sleeping, eating, cooking and sanitation, for not more than one family, or a congregate residence for ten (10) or less persons.

FRANCHISE: An initial authorization, or renewal thereof issued hereunder which authorizes the construction or operation of a cable system.

GRANTEE: Any person receiving a franchise pursuant to this Chapter and under the granting franchise agreement, and its successors, transferees or assignees.

GRANTOR: The City of Corcoran as represented by the City Council or any delegate acting within the scope of its jurisdiction and authority.

GROSS REVENUE: All cash, credits, property of any kind or nature, or other consideration received directly or indirectly by the grantee, its affiliates, subsidiaries, parent and any person in which grantee has a financial interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable services by grantee. Gross revenues shall include but not be limited to basic service monthly fees, pay tiers, premium channels, pay-per-view, leased channel fees, converter rental or sales, advertising revenue, any other payments by subscribers or users of the grantee's cable system made directly or indirectly to any person who has contracted to provide cable services on the cable system, and such other revenues as agreed to in the franchise agreement. These gross revenues shall not include:

A. The amount of any refunds, credits, or other payments made to subscribers or users;

B. Any taxes on services furnished by the grantee imposed directly or indirectly on any subscribers or users by any Municipal corporation, political subdivision, State or other governmental unit and collected by the grantee for the governmental unit;

C. The sale or transfer of tangible property;

D. The sale or transfer of the franchise;

E. The issuance, sale, or transfer of corporate stocks, bonds, or other securities;

F. Equipment deposits;

G. Uncollected bad debt; and

H. Such other revenues expressly excluded in the franchise agreement. These gross revenues shall not be reduced for any purposes other than provided herein.

INSTALLATION: The connection of the system from feeder cable to subscribers' terminals.

LOCAL ORIGINATION PROGRAMMING: Programming, created, produced, purchased, or otherwise acquired by grantee for distribution to subscribers.

OTHER PROGRAMMING SERVICE: Information that a cable operator makes available to all subscribers generally.

PERSON: An individual, partnership, association, joint stock company, trust, corporation or governmental entity.

PUBLIC, EDUCATIONAL AND GOVERNMENTAL ("PEG") ACCESS PROGRAMMING: Programming created and produced by members of the public who are residents of the City, programming created, produced, or acquired by representatives of the educational community acting in their official capacity, or programming created, produced, or acquired by representatives of the City acting in their governmental capacity.

PUBLIC PROPERTY: Any real property owned by the City other than a street.

SERVICE AREA OR FRANCHISE AREA: The entire geographic area within the City designated in a franchise agreement as the area in which the grantee is authorized to offer cable service.

STATE: The State of California.

STREET: The surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right of way now or hereafter held by the City, or dedicated for use by the City, use by the general public, or use compatible with cable system operations.

VIDEO PROGRAMMING: Programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (Ord. 514 N.S., 1-17-1995)

A. A franchise granted by the City under the provisions of this Chapter shall permit constructing, operating and maintaining a system in the service area, including the right to erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets and public property such lines, cables, fiber optics, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appropriate to the operation of the system.

B. It shall be unlawful for any person to construct, install or operate a cable system in the City within any street or within any other right of way within the City without a properly granted franchise awarded pursuant to the provisions of this Chapter, which franchise is in full force and effect, or to construct, install or operate a cable system other than in accordance with the provisions of this Chapter. (Ord. 514 N.S., 1-17-1995)

A. Term: A franchise granted hereunder shall be for a term established in the franchise agreement.

B. Renewal: The City may establish by resolution a process for renewing any franchise, which process must be subject to applicable law.

C. Area: The franchise area shall include all areas within the territorial limits of the City, and within any area henceforth added to the territorial limits of the City during the term of the franchise. (Ord. 514 N.S., 1-17-1995)

This Chapter shall be construed in a manner consistent with all applicable Federal and State laws. Whenever the Federal Communications Commission (FCC) or Public Utilities Commission (PUC) of the State or any other Federal or State agency shall now or hereafter exercise any paramount jurisdiction over any specific provisions of this Chapter, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the Grantor only if the action by such jurisdiction specifically preempts Grantor's exercise of jurisdiction. (Ord. 514 N.S., 1-17-1995)

A. The franchise shall not be sublet or assigned, nor shall any of the rights or privileges therein granted or authorized be leased, assigned, sold or transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except the grantee, either by act of the grantee or by operation of law, without the prior written consent of the Grantor, which consent shall not be unreasonably withheld. Such consent shall not be required for: 1) assignments or transfers between or among wholly-owned subsidiaries of grantee, or affiliates of Grantee which are controlled or wholly-owned by the same parent or 2) assignments in trust, mortgage or other hypothecation, in whole or in part, to secure indebtedness. The granting of such consent shall not render unnecessary any subsequent consent. Upon the receipt of all reasonably necessary requested information the Grantor shall approve, disapprove, or conditionally approve said request within a reasonable period of time, in accordance with applicable law.

B. The requirements of subsection A of this Section shall also apply to a transfer in the control of grantee. The word "control" as used herein shall mean actual working control in whatever manner exercised.

C. The transferee shall be required to establish that it possesses the legal, financial and technical qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise.

D. Any financial institution having a pledge of the grantee or its assets for the advancement of money for the construction and/or operation of the cable system shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the cable system and assume all obligations of the franchise and the franchise agreement, in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty (30) days of assuming such control that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. (Ord. 514 N.S., 1-17-1995)

All dwelling units within residential and commercial areas within the franchise area will be provided with access to service from the system, subject to any line extension requirements in the franchise agreement. (Ord. 514 N.S., 1-17-1995)

Any franchise granted hereunder shall be nonexclusive. Grantor may grant at its sole option one or more franchises in accordance with applicable law. Nothing herein shall be construed to require Grantor to grant a franchise. (Ord. 514 N.S., 1-17-1995)

A. There is hereby reserved to Grantor every right it may have in relation to its power of eminent domain over grantee's franchise and property.

B. Except as otherwise provided in the franchise agreement, neither the granting of any franchise, nor any provisions hereof, shall constitute a waiver or bar to the exercise of any governmental right or power by Grantor.

C. Any right or power in, or duty retained by or imposed upon Grantor, or any commission, officer, employee, department, or board of Grantor, may be assigned or transferred by Grantor to any officer, employee, department or board of Grantor.

D. The Grantor shall have the right to inspect all construction or installation or other physical work performed by grantee in connection with the franchise, and to make such tests as Grantor shall find necessary to ensure compliance with the terms of the Franchise and other pertinent provisions of law, so long as said inspection and testing does not unreasonably interfere with grantee's operations.

E. Consistent with applicable law, at the expiration of the term or any renewal term or extension for which the franchise is granted, or upon its lawful revocation, expiration, or termination, the Grantor shall have the right to require the grantee to remove, at grantee's expense, all portions of the system and any other property used or useful in the system from all streets and public ways within the franchise area within a reasonable period of time.

F. Grantor shall have the right of intervention in any suit, proceeding or other judicial or administrative proceeding in which Grantor has any material interest, to which grantee is a party.

G. Grantor shall have the right to inspect, obtain copies (except as provided below) of and audit all relevant information that is reasonably necessary for the exercise of Grantor's regulatory authority upon reasonable notice on grantee's local premises at any time during normal business hours, and any grantee records kept at another place shall, upon reasonable notice be made available at grantee's premises within Kings County for Grantor's inspection or copying, so long as said inspection does not unreasonably interfere with grantee's operations, and provided further that Grantor may copy grantee's confidential trade secrets or proprietary information only when it is essential, in Grantor's sole discretion, to its regulatory function. Grantor shall pay all reasonable costs for copying any relevant information needed. Grantor shall maintain as confidential and shall not disclose grantee's proprietary information to the extent permitted by law.

H. Grantor shall have the right to amend any or all portions of this Chapter or other regulations so long as such amendment does not increase the material burden nor diminish the rights of grantee. (Ord. 514 N.S., 1-17-1995)

A. Grant Of Franchise: The terms of this Section shall not apply to applications for renewal of a franchise unless required by the franchise renewal process resolution as adopted by the City Council pursuant to subsection 7-6-4B of this Chapter.

1. Grantor may grant a franchise to any person who offers to provide a cable system under and pursuant to this Chapter.

2. Consistent with applicable law, no provision of this Chapter shall require the granting of a franchise when, in the sole opinion of Grantor, it is in the public interest not to do so.

3. The purpose of a franchise and franchise agreement shall be to identify and authorize its specific grantee and to identify and specify those terms, conditions, definitions, itemizations, specifications and other particulars of the agreement between the Grantor and grantee which it represents. In so doing, a franchise or franchise agreement may clarify, extend and interpret the provisions of this Chapter. Where a franchise or franchise agreement and this Chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event this is not possible within reasonable limits, the terms of this Chapter shall prevail.

4. The award of a franchise authorizing the use of public property or public rights for private purposes shall be denied consideration by the grantee in the form of agreement to provide the system and services offered in accordance with the provisions hereof and of the franchise and franchise agreement.

5. Neither this Chapter nor a franchise granted under it relieves grantee of any requirement of Grantor or of any ordinance, rule, regulation or specification of Grantor now or hereafter in effect, including, but not limited to, the payment of all normal permit and inspection fees so long as said ordinance, rules, regulations or specifications do not materially conflict with or alter the express terms of this Chapter, the franchise and the franchise agreement.

6. No privilege shall be granted or conferred by a franchise except those specifically prescribed herein or in the franchise agreement.

7. Any person who provides a system or services as defined herein shall be deemed a grantee and shall not do so except in accordance with a franchise granted hereunder. If such grantee uses distribution channels furnished by a telephone company or other public utility, said grantee shall be required to comply with all of the provisions hereof.

B. Application Required: Any person desiring a Franchise shall file an application with the City. A nonrefundable application fee established by the City shall accompany the application to cover all costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such costs exceed the application fee, the applicant shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs from the City. In the event such application fee exceeds the amount of such costs, the City shall refund the amount of the excess to the applicant within thirty (30) days following completion of the proceedings relating to such application.

C. Application Contents: An application for a franchise shall contain, where applicable:

1. Designation of the specific area to be served;

2. Resume of prior history of applicant, including the expertise of applicant in the cable television field;

3. List of the partners, general and limited, if the applicant is a partnership and a list of the persons and/or entities involved if the applicant is a joint venture;

4. List of the names and addresses of stockholders of applicant and percentage of stock owned or controlled by each shareholder. List shall include all persons having a legal or equitable interest in five percent (5%) or more of its voting stock;

5. List of officers, directors and managing employees of applicant, together with a description of education and business background of each such person;

6. A current financial statement of applicant verified by a CPA audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the City;

7. A proposed construction schedule;

8. A street map of area to be served showing the location of proposed or existing head-end site (antenna site) and business office;

9. Proposed rates and charges;

10. Itemized electronic equipment to be used, channels to be provided, pay TV, or additional services and type of converter;

11. Market survey of area and financial projections for operation of the cable system covering a period of at least ten (10) years;

12. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant;

13. A signed statement by an officer indicating whether any principal, officer, director or managing employee:

a. Has ever been convicted of a felony or held liable for acts involving violation of any tax or securities law, or is presently under any indictment for any such acts;

b. Has ever had a judgment in an action for bankruptcy, fraud, deceit or misrepresentation entered against him/her or them by any court of competent jurisdiction; or

c. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving any cable television system; and

14. Any reasonable additional requirements or information that the City deems to be applicable.

D. Setting For Public Hearing:

1. The Grantor may, by advertisement or any other means, solicit and call for applications for franchises, and may determine and fix any date upon or after which the same shall be received by the Grantor, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify the soliciting, calling for, making and receiving of such applications.

2. Upon receipt of any application for a franchise, the Council shall refer the same to the City Manager, who shall prepare a report and make his/her recommendations respecting such application.

3. The City Clerk shall set applications for hearing at a time and date approved by the Council.

E. Notice Of Hearing: Not less than fifteen (15) days before the hearing, the City Clerk shall give notice to the applicant in writing of the time, date and place of hearing. The City Clerk shall serve such notice upon the applicant either by first class mail, postage prepaid, or by personal delivery thereof to the applicant.

F. Posting And Publishing Notice: The City Clerk shall cause notice to be given in accordance with the applicable requirements of the Grantor and of State law.

G. Comments By Interested Persons: Any time after the filing of an application as provided in this Chapter, and prior to the hearing thereon, any person interested may file with the City Clerk written comments, protests, and/or suggestions, either for or against the granting of the franchise or to suggest any terms and conditions which should be included in the franchise.

H. Conduct Of Hearing: At the time and place set for the hearing or at the time and place to which the hearing may be continued by the Council, the Council shall hear the applicant, who may present any relevant evidence to show why the franchise should be granted, why certain terms or conditions should be imposed or not imposed on such franchise if granted, and also shall hear testimony or statements of other persons who may attend the hearing.

I. Decision After Hearing: Within sixty (60) days after the close of the hearing, the Council shall make a decision based on the evidence received at the hearing as to whether or not the application should be granted, and, if granted, subject to what conditions. The Council may grant one or more franchises, or may decline to grant any franchise. The Council shall send a copy of its decision to the applicant. (Ord. 514 N.S., 1-17-1995)

A. Minimum Service Standards And Programming Requirements:

1. Minimum service standards, programming requirements (for both local origination programming and for PEG access programming) and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this Chapter may be established in the franchise agreement as permitted by applicable law, and grantee shall comply with such standards in the operation of the cable system.

2. The selection, creation, production, purchase, or other acquisition of local origination programming shall be exclusively within the editorial discretion of grantee, except as may be provided otherwise in the franchise agreement.

3. Grantee shall not exercise any editorial control over PEG access programming except as otherwise required by law, and Grantor may exercise control over such programming as is permitted under applicable law.

4. At such time as it is allowable by law, Grantor may by resolution require grantee to add a fee, separate and apart from the franchise fee established in the franchise agreement, to its monthly rates for basic cable service for the purpose of providing operational support for public access programming. Grantor may set this fee in an amount consistent with the City's public access needs. Grantee shall be given thirty (30) days' advance written notice prior to the introduction of the resolution and shall have the right to appear before the City Council on the matter. Grantee may petition the Grantor for reduction or elimination of this public access operational support fee if grantee is suffering a competitive disadvantage or undue financial burden.

B. Franchise Fee:

1. Beginning with the effective date of the franchise, the grantee shall pay to the Grantor the franchise fee set forth in the franchise agreement, or in the absence thereof, the maximum amount permitted by applicable law.

2. Payments due to Grantor under this provision shall be computed quarterly for the preceding quarter, and shall be paid within thirty (30) days of the close of each calendar quarter. The payment shall be accompanied by a report showing the basis for the computation and such other relevant facts as may be required by Grantor to determine the accuracy of said payment.

3. No acceptance of any payment by Grantor shall be construed as a release or as an accord and satisfaction of any claim Grantor may have for further or additional sums payable as a franchise fee under this Chapter or for the performance of any other obligation of grantee. All amounts paid shall be subject to audit and recomputation by Grantor as subject to conditions specified in the franchise agreement.

4. In the event that any payment or recomputed amount under this Section is not made on or before the due date, grantee shall pay as additional compensation:

a. An interest charge on the amount due, computed from such due date, at an annual rate equal to the maximum interest rate allowed by law.

b. In the event that the amount of the underpayment as identified by Grantor's audit is ten percent (10%) or more than the original amount due to Grantor, then Grantor shall be entitled to an additional sum of money equal to ten percent (10%) of the underpayment.

C. Bond And Letter Of Credit:

1. Grantee shall, at all times during the term of the franchise, maintain in effect and keep on file with the Grantor a bond running to the Grantor in such amount established in the franchise agreement with sureties and other terms to be approved by the Grantor. The bond shall be available to Grantor to satisfy an amount due Grantor from grantee which arises in accordance with the terms and conditions of this Chapter, the franchise or the franchise agreement. Grantor shall have the right to suspend the franchise during any period that grantee fails to maintain said bond in full force and effect and to invoke any other remedies, including the assessment of monetary damages under subsection 7-6-13G of this Chapter.

2. At the option of Grantor, grantee may be required in the franchise agreement to post an irrevocable letter of credit in lieu of the bond. Such letter of credit must be issued by a bank or other credit agency approved by Grantor, in the amount specified in the franchise agreement. Said letter of credit shall incorporate wording approved by Grantor so that Grantor is able to draw such sums from time to time as Grantor may find necessary to satisfy any defaults of grantee or to meet any payments due Grantor under or in connection with this Chapter, the franchise or the franchise agreement upon ten (10) days' written notice. Said letter of credit shall further provide for sixty (60) days' written notice by certified mail by its issuer to Grantor of any pending expiration or cancellation, or other language acceptable to Grantor. Said notice shall without further cause constitute reason for Grantor to withdraw the full sum under said letter of credit to be held in the accounts of Grantor until such letter of credit is re-established to the satisfaction of Grantor.

3. Grantee shall pay all fees or other charges required to keep such letter of credit in full force and effect. Within thirty (30) days of any withdrawal by Grantor under said letter of credit, grantee shall restore said letter of credit to its original amount.

4. All provisions herein applicable to a bond shall also apply to a letter of credit.

D. Construction And Maintenance Requirements:

1. The system shall be constructed, maintained and/or rebuilt in accordance with the provisions of the franchise agreement and all construction standards and requirements of Grantor. Construction components and techniques, system technical and performance standards shall be in accordance with this Chapter, the franchise agreement and applicable law.

2. Grantee shall adhere to all building and zoning requirements currently or hereafter in effect and shall obtain all required permits. Grantee shall arrange the facilities of its system, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said property to any person. Grantee shall provide at least forty eight (48) hours' notice to all affected property owners and Grantor prior to installing any facilities of the system upon easements located on private property. Grantor shall not modify its construction requirements subsequent to the completion of construction so as to require reconstruction or retrofit unless the public health and safety so requires.

3. Cable and related facilities shall be installed underground at grantee's cost where all existing utilities are already underground. Previously installed aerial cable and related facilities shall be installed underground at grantee's pro rata cost in concert with other utilities when all such other utilities convert their facilities in the same area from aerial to underground.

4. Any and all streets and public ways disturbed or damaged by grantee or its contractors, during the term of the franchise shall be restored within the time limits specified by Grantor, at grantee's expense, to a condition comparable to their condition prior to the disturbance or damage unless otherwise authorized in writing by Grantor.

5. Methods of construction, installation, and maintenance of the grantee's cable system shall comply with the National Electrical Safety Code to the extent that such Code is consistent with local law affecting the construction, installation, and maintenance of electric supply and communication lines.

6. Grantee may cut or trim trees and vegetation interfering with National Electrical Safety Code and other clearance requirements.

7. Upon order by Grantor, grantee shall relocate its facilities at grantee's sole expense in order to accommodate the widening, relocation, change of grade, or any other work or improvement of a public street or right of way. Nothing in a franchise shall prevent Grantor from constructing, repairing or altering any public work. If any property of grantee interferes with the construction, maintenance or repair of any public improvement, all such property shall be removed or replaced in such manner as directed by Grantor so that the same shall not interfere with the said public work. Such removal or replacement shall be at the sole expense of grantee.

8. In the event it is necessary to temporarily move or remove any property of grantee at Grantor's direction for a public purpose in order lawfully to move a large object, vehicle, building or other structure, grantee shall move, upon reasonable notice and at its sole expense, its property as may be required by Grantor to facilitate such movements. No such movement shall be deemed a taking of grantee's property. Nothing herein shall limit the right of grantee to seek reimbursement from any person other than Grantor.

9. In the event it is necessary temporarily to move or remove any of grantee's property, in order for any person other than Grantor lawfully and for a nonpublic purpose to move a large object, vehicle, building or other structure over the streets of Grantor, upon thirty (30) days' prior notice by said person to grantee, grantee shall move at the expense of the person requesting the temporary removal such of his/her facilities as may be required to facilitate such movement.

10. Grantee shall at all times take reasonable precautions for preventing failures and accidents which are likely to cause damage or injury to the public, to employees of Grantor or grantee, and to public or private property.

11. All lines, equipment, and facilities within the service area shall at all times be kept and maintained in a safe and suitable condition and in good order and repair. In the event that grantee's facilities create an unsafe condition, grantee shall upon notice correct such unsafe condition. The Grantor shall be the sole judge of an unsafe condition.

12. In all other cases, grantee shall be eligible for relocation compensation to the same extent as the Grantor compensates any utility companies.

13. Upon the failure, refusal or neglect of grantee to cause any construction, repair, or other work necessary to comply with the terms of this Chapter, the franchise agreement or any other requirement of the Grantor, Grantor may, but is not required, to cause such work to be completed in whole or in part. Grantor shall give grantee reasonable notice of its intent to exercise this power and fifteen (15) days thereafter to cure. After completion of the work in whole or in part, Grantor shall cause to be submitted to grantee an itemized statement of the costs thereof. Grantee shall pay to Grantor the costs in the itemized statement within thirty (30) days of presentment.

E. Technical Standards:

1. The grantee shall construct, install, operate and maintain its system in accordance with all FCC technical standards as set forth in the franchise agreement.

2. The Grantor may specify additional technical requirements in the franchise agreement.

F. Rates: Grantor may regulate any rate charged by grantee as permitted by applicable law.

G. Indemnity: Grantee shall indemnify, defend, and hold harmless the Grantor, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees in litigation) of every nature arising out of or in connection with grantee's performances of work or its failure to comply with any of the obligations, under this Chapter and the franchise agreement, except such loss or damage which is caused by the sole negligence or wilful misconduct of Grantor, its officers, officials, employees, or agents. The indemnity provisions of this Chapter shall be implemented pursuant to the terms of the franchise agreement.

H. Insurance:

1. On or before commencement of any activity by grantee pursuant to a franchise, the grantee shall obtain policies of liability, worker's compensation, property and defamation insurance from companies authorized to transact business in California by the Insurance Commissioner of California.

2. The policies of liability and property insurance shall:

a. Be issued to grantee and name Grantor, its officers, officials, agents, and employees as additional insureds;

b. Indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this Chapter by providing coverage therefor, including but not limited to coverage for:

(1) Negligent acts or omissions of grantee or its employees, or

(2) Use of motor vehicles;

c. Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement; such insurance policy shall be subject to the review and approval of Grantor's legal counsel;

d. Be noncancelable and nonamendable without thirty (30) days' prior written notice thereof directed to Grantor; and

e. Contain such other provisions as required by the franchise agreement.

3. The policy of Worker's Compensation Insurance shall:

a. Have been previously approved as to substance and form by the California Insurance Commissioner;

b. Cover all employees of grantee who in the course and scope of their employment are to conduct the franchise operations;

c. Provide for every benefit and payment presently or hereinafter conferred by division 4 of the Labor Code of the State upon an injured employee, including vocational rehabilitation and death benefits;

d. Contain such other provisions as required by the franchise agreement.

4. The dollar amounts of all insurance policies shall be those specified in the franchise agreement.

5. Grantee shall file with the City Clerk prior to commencement of operations either certified copies of these insurance policies or a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy:

a. The policy number;

b. The date upon which the policy will become effective and the date upon which it will expire;

c. The names of the named insureds and any additional insured required by this Chapter or the franchise agreement;

d. The subject of the insurance;

e. The type of coverage provided by the insurance; and

f. Amount or limit of coverage provided by the insurance.

6. Grantee shall not commence operations until grantee has complied with the aforementioned provisions of this Section and with the specific insurance provisions in the franchise agreement.

7. In the event grantee fails to procure and maintain any of the abovedescribed insurance policies in full force and effect, it shall be deemed a material default of the franchise agreement. Grantor shall, upon forty eight (48) hours' notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to invoke any and all remedies, including the assessment of monetary damages under subsection 7-6-13G of this Chapter or institute any revocation procedures pursuant to this Chapter. (Ord. 514 N.S., 1-17-1995)

A. Records Required:

1. Grantee shall at all times maintain:

a. A record of all written complaints received and interruptions or degradation of service experienced for the preceding two (2) years; provided, that such complaints result in or require a service call, or concern the conduct of an employee of the grantee.

b. A full and complete set of plans, records and "as-built" maps showing the location of the cable system, exclusive of subscriber service drops and equipment provided in subscribers' homes.

c. Information regarding all complaints received, the type of complaint, the date of the acknowledgement and summary of action taken. Such information shall be maintained for a period of one year and made available to Grantor within thirty (30) days of a request from Grantor.

2. The Grantor may request additional information, records and documents from time to time, related to the franchise or the franchise agreement.

B. Grantor's Right To Inspect: Upon reasonable notice from Grantor, grantee shall permit examination by any duly authorized representative of the Grantor, of all property and facilities of grantee used or useful in the construction, rebuild or operation of the cable system, and all records relating to the franchise, the franchise agreement, the cable system and the grantee, subject to subsection 7-6-9G of this Chapter.

C. Plant Performance Reports: Grantee shall submit to Grantor all FCC proof-of-performance or other technical performance reports and the cumulative leakage index test for the system within thirty (30) days of the due date for the filing of same at the FCC.

D. Public Reports: If grantee is publicly held, a copy of grantee's annual and other periodic reports, including but not limited to 10-K reports, and those of its parent, shall be submitted to Grantor within forty five (45) days of the due date for the filing of such reports.

E. Reports Provided To Grantor:

1. All reports, filings, documents or responses required of the grantee under this Chapter or the franchise agreement shall be provided by the grantee to the Grantor within the period required therefor and shall contain the information specified.

2. The wilful refusal, failure, or neglect of grantee to file any of the reports required as and when due under this Chapter, may be deemed a material breach of the franchise agreement and may subject the grantee to all remedies, legal or equitable, which are available to Grantor under this Chapter, the franchise agreement or otherwise.

3. Any materially false or misleading statement or misrepresentation made knowingly and wilfully by the grantee in any report required under this Chapter or under the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to Grantor under this Chapter, the franchise agreement or otherwise. (Ord. 514 N.S., 1-17-1995)

A. Notice Of Violation: Grantor shall provide grantee with written notice of violation(s) by grantee of this Chapter or franchise agreement upon which Grantor proposes to take corrective action. The notice shall specifically describe the nature and scope of the alleged violation by grantee. Grantee shall have sixty (60) days from receipt of such written notice to respond by correcting the violation to Grantor's satisfaction, or in the alternative, by demonstrating to Grantor's satisfaction that such violation has not in fact occurred or by submitting in writing a plan acceptable to Grantor to correct the violation. If Grantor fails to object within sixty (60) days after receiving grantee's response to the notice of violation, the matter shall be deemed resolved.

B. Default: If grantee fails to disprove or to correct the violation or to submit to Grantor a plan to correct the violation as provided in subsection A of this Section, Grantor may declare grantee to be in default, which declaration of default shall be in writing and shall specify the nature of the violation and any proposed remedy to be sought by Grantor as provided in subsection G of this Section. Upon receipt of declaration of default, grantee may request additional time in which to cure the violation, which extension of time may be granted by Grantor at its sole discretion.

C. Dispute Resolution; Appeal Of Declaration Of Default: Grantee may appeal a declaration of default by Grantor directly to the Council pursuant to subsection F of this Section or may elect to invoke advisory arbitration pursuant to subsection D of this Section. A notice of appeal from declaration of default under subsection F of this Section or a notice of appeal to advisory arbitration under subsection D of this Section shall be in writing and shall state the grounds for the appeal, the nature of the dispute between the parties, the remedy or relief sought by grantee and shall include a copy of the declaration of default. Grantee's notice of appeal shall be filed with Grantor within thirty (30) calendar days of receipt by the grantee of declaration of default as provided in subsection B of this Section.

D. Advisory Arbitration Procedure:

1. Within thirty (30) days of grantee's election to arbitrate, the parties shall jointly select an arbitrator to hear the dispute. The parties shall use their best efforts to obtain an arbitrator who is an individual knowledgeable in the area of cable television. If the parties are unable to agree on an arbitrator within thirty (30) days, a list of three (3) arbitrators shall be provided by the American Arbitration Association (AAA) to the parties, and each shall have the right to strike one name within twenty (20) days of receipt of the list. The remaining arbitrator shall hear the dispute.

2. Within thirty (30) days following selection of the arbitrator, the arbitration hearing shall commence unless the time for hearing is extended by mutual agreement of the parties. Said hearing shall be conducted so as to afford the parties full due process rights, including the right to introduce evidence, call witnesses on their behalf, and to cross-examine adverse witnesses.

3. The hearing shall be recorded by audio taping or by a certified court reporter. Either party may request preparation of a transcript of the proceedings which transcript shall be deemed by the parties to be a legally sufficient record of the arbitration hearing for any and all purposes. Cost of transcript preparation shall be borne by the requesting party.

4. Within thirty (30) days following the conclusion of the hearing, the arbitrator shall prepare and submit to the parties written findings and conclusions to include the arbitrator's recommendation for relief, remedy or resolution to the dispute.

5. The decision of the arbitrator shall be advisory only and shall not be binding upon the parties. Either party may appeal the arbitrator's decision to the Council pursuant to subsection E of this Section.

6. Costs of the arbitration shall be borne equally by the parties. The costs of arbitration shall include the fees of the arbitrator and the costs of the court reporter or audio recording costs.

E. Appeal Of Arbitrator's Decision:

1. Within thirty (30) days of issuance of the arbitrator's written decision, either party may file a notice of appeal from the arbitrator's decision seeking administrative review by the Council. Said notice shall be in writing and shall state the grounds for the appeal, the nature of the dispute between the parties, the remedy or relief sought by the appellant and shall include a copy of the arbitrator's findings and conclusions and may include a transcript of the hearing. Within thirty (30) days of filing of such notice of appeal by either party, the Council shall schedule an administrative review which shall be held within thirty (30) days thereof.

2. An administrative review pursuant to this Section shall be conducted in a manner set forth in the franchise agreement.

3. An administrative review before the Council pursuant to this Section shall constitute the final level of administrative review by Grantor provided herein and shall represent the exhaustion of administrative remedies by the parties. The written decision of the Council shall be served by Grantor upon grantee by certified mail.

F. Appeal To City Council:

1. In lieu of electing advisory arbitration, the grantee may appeal the declaration of default directly to the Council by submitting a notice of appeal from declaration of default for a hearing before the Council. Said notice of appeal shall be in writing and shall state the grounds for the appeal, the nature of the dispute between the parties, the remedy or relief sought by grantee and shall include a copy of the declaration of default.

2. Within thirty (30) days of the filing of such notice of appeal, the Council shall schedule an evidentiary hearing at which the parties shall be afforded full due process rights, including the right to introduce evidence, call witnesses on their behalf and cross-examine adverse witnesses. The hearing shall be held within sixty (60) days of the filing of the notice of appeal. The parties shall receive written notice of the scheduled hearing no later than thirty (30) days in advance of the hearing date.

3. Within thirty (30) days following the conclusion of the evidentiary hearing, the Council shall issue its written findings and decision to the parties. The written decision shall be served by Grantor upon grantee by certified mail.

4. An evidentiary hearing before the Council pursuant to this Section shall constitute the final level of administrative review provided herein and shall represent the exhaustion of administrative remedies by the parties.

G. Available Remedies: Following completion of the proceedings pursuant to this Section, Grantor may proceed to take all necessary steps to obtain the remedy sought, which may include:

1. Liquidated Damages: Liquidated damages as provided for in the franchise agreement may be assessed against grantee as the exclusive remedy under this Section.

2. Collection From Performance Bond Or Letter Of Credit: Grantor may proceed against grantee's performance bond or letter of credit to collect its actual or liquidated damages.

3. Revocation Of Franchise: The Council may revoke grantee's franchise pursuant to the procedures set forth in Section 7-6-13 of this Chapter only if the Council makes a specific finding that grantee committed a material violation of this Chapter or franchise agreement as the term "material" is defined in the franchise agreement. Upon the revocation of the franchise by the Council, Grantor may require grantee:

a. To forthwith remove its structures and facilities from Grantor's streets and rights of way and to restore them to their prior condition within a reasonable time at grantee's expense. If grantee fails to comply with such requirements, Grantor may cause the removal and restoration to be completed, in which case Grantor shall be entitled to collect all costs thereof from grantee. Any such cost shall constitute a lien upon all structures, facilities or other property of grantee within the franchise area;

b. To abandon its structures and facilities in place; or

c. To sell the cable system to an unaffiliated third party.

4. Other Relief: Initiate any action or proceeding in law or equity (including a suit for injunctive relief or actual damages) which Grantor deems appropriate to enforce the City's rights under this Chapter or franchise agreement.

H. Judicial Review: Final decisions of the Council following administrative review shall be subject to judicial review.

I. Unauthorized Use:

1. It is unlawful for any person to make or use any unauthorized connection to, or to monitor, tap, receive or send any signal or cable service on the system, or to enable any person to receive or use any signal or cable service without payment to grantee. Violation of this Section is a misdemeanor punishable pursuant to the provisions of local ordinances of Grantor. The term "enable" in this Section includes the manufacture or distribution of equipment intended by the manufacturer or distributor for unauthorized reception of signals, channels or cable service over the system.

2. It is unlawful for any person to wilfully attach to, tamper with, modify, remove or injure any part of the cable system without the express consent of the grantee. Violation of this Section is a misdemeanor punishable pursuant to the provisions of local ordinances of the Grantor.

J. Abandonment Or Removal Of Franchise Property:

1. In the event that the use of any portion of the system is discontinued, or grantee fails to operate any portion of the system, for a period of thirty (30) consecutive days, grantee shall be deemed to have abandoned that portion of the system.

2. Grantor, upon such terms as Grantor may impose, may: a) order grantee to maintain such portion of the system; or b) give grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the franchise. Unless such permission is granted or unless otherwise provided in this Chapter, the grantee shall remove all abandoned facilities and equipment upon receipt of written notice from Grantor and shall restore the street to its former state at the time such facilities and equipment were removed, as near as may be, so as not to impair its usefulness. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the public rights of way prior to and after removal. The liability, indemnity and insurance provisions of this Chapter and the performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions of this Section.

3. Upon abandonment of any portion of the system in place, the grantee, if required by the Grantor, shall submit to the Grantor an instrument, satisfactory in form to the City Attorney, transferring to the Grantor the ownership of the portion of the system.

4. At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, extension or transfer, the Grantor shall have the right to require grantee to remove, at its own expense, all aboveground portions of the cable system from all streets and public ways within the City within a reasonable period of time, which shall not be less than one hundred eighty (180) days, or within such reasonable additional period as may be required therefor.

5. Notwithstanding anything to the contrary set forth in this Chapter, in any removal of facilities due to abandonment or franchise revocation, the grantee shall not be required to remove conduit from under ground, where Grantor may determine that no damage to the surface of any streets, rights of way or structures may result from such nonremoval.

K. Receivership And Foreclosure:

1. A franchise granted hereunder shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: a) such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all material terms and provisions of this Chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all material defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to the Grantor; and b) such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise.

2. In the case of a foreclosure or other judicial sale of the system, or any material part thereof, Grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise herein granted and all rights and privileges of the grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: a) Grantor shall have approved the transfer of the franchise, as and in the manner that this Chapter provides; and b) such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the franchise.

L. Waivers: The Grantor may waive in its sole discretion any provision of the franchise, subject to applicable law.

M. Rights Of Individuals:

1. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age, gender, marital status, or disability. Grantee shall comply at all times with all other applicable Federal and State laws and regulations, and all executive and administrative orders, relating to nondiscrimination, including without limitation section 51 of the California Civil Code and section 53066.2 of the Government Code.

2. Grantee shall adhere to the applicable equal employment opportunity requirements of the Federal Communications Commission and applicable State regulations, as now written or as amended from time to time.

N. Tenant Rights:

1. Definitions:

DEVELOPER: Each party responsible for the acquisition, ownership, construction, management, or operation of a residential subdivision.

EASEMENT: The streets, highways, alleys, rights of way, easements and riser paths of any subdivision which are dedicated or to be designated for public utility use, whether by formal instrument of dedication or by actual use in the delivery of utility services to residents.

SUBDIVISION:

A. A real estate development.

B. A condominium, or cooperative, mobile home or multi-unit apartment.

C. Any other multiple unit dwelling.

2. Access To Subdivisions:

a. Grantee has the right to use the easements of any subdivision for the construction, installation, maintenance and repair of a cable system.

b. The developer of each subdivision for which a tentative map or parcel map is required pursuant to State law shall identify on the map land dedicated or to be dedicated to public utility and cable system use so as to provide grantee a path from which to extend cable service to each residential parcel in the subdivision.

c. Each developer shall assure that grantee is provided timely access to:

(1) Jointly-used trenches, at the time that the trenches are opened for utility and/or cable system installation. Access shall be provided on a cost shared basis, without discrimination among users.

(2) Underground easements and all riser paths used for the installation of utility and/or cable system facilities. Access shall be provided prior to the paving or sealing of any pertinent road (if within the road right of way) and shall be offered at all other locations no later than the time of installation of telephone or power.

3. Procedures:

a. A developer shall assure delivery of reasonable advance notice to the grantee of intended subdivision construction; and timely notice (within 14 days) of the issuance of work permits related to use of subdivision easements by utilities or the cable system.

b. A developer shall assure delivery to the grantee of thirty (30) days' advance notice of the opening of joint-use trenches by utilities and the use of underground easements and of riser paths by utilities or the cable system.

c. All notices sent to the grantee hereunder by a developer shall be sent registered mail, return receipt requested, to the general manager, system manager, or to the address on file with the Grantor. No developer may omit notice without written confirmation from the Grantor that there is no grantee able to provide cable service to that subdivision.

d. If the grantee fails to install its conduit within a shared trench within five (5) working days of the date trenching is available, as designated in the developer's notice, the grantee shall be responsible for all costs of reopening the trench. Separate trenches created by the grantee for distribution plant shall be installed during any period of installation by multiple grantees, and as contiguous as reasonably practicable to other utility trenches.

4. Residents' Choice Of Grantee:

a. Each resident of a subdivision shall be provided with the continuing option to receive cable service from any grantee.

b. No developer shall enter into an agreement which has the purpose or effect of interfering with a resident's free and complete exercise of the rights hereunder, or enter into any arrangement with a third party to do so.

5. Remedies: Any developer who violates this Chapter shall be subject to all remedies available to Grantor under any permit or authorization received or held by developer from Grantor.

O. Poles: The franchise shall not relieve grantee of any obligations involved in obtaining pole or conduit space from any department of Grantor, utility company, or from other persons who maintain facilities in streets or rights of way. Subject to applicable law, grantee shall negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction. Grantee shall not erect any pole on or along any street or public right of way in an area in which there are aerial utility facilities. If additional poles in such an area are necessary, grantee shall negotiate with a public utility for their installation. Any such installation shall require the advance written approval of Grantor. If poles or facilities are not made available, consistent with section 767.5 of the Public Utilities Code, grantee may erect its own poles subject to Grantor's approval.

P. Separability: If any provision of this Chapter is held by any court or by any Federal or State agency of competent jurisdiction, to be invalid as conflicting with any Federal or State law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provision shall be considered a separate, distinct, and independent part of this Chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. (Ord. 514 N.S., 1-17-1995)

A. Customer Service:

1. The grantee shall provide each new customer with the following written information at the time any cable service is initiated for that customer:

a. The time allowed to pay outstanding bills.

b. Grounds for termination of service and steps grantee must take before terminating service.

c. How the customer can resolve billing or service disputes.

d. The steps necessary to have service reconnected after involuntary termination.

e. The fact that customers shall have the right to speak with a supervisor, and if none is available, a supervisor shall return the customer call within one working day.

f. How to contact the appropriate regulatory authority.

g. Any other information required by applicable law.

2. In addition, at least once each calendar year, grantee shall notify each customer that information concerning each above item is available from grantee upon request.

3. Grantee shall maintain at least one office in Kings County or at such other location approved in writing by Grantor. The office shall be open during all normal business hours, but in no case less than forty eight (48) hours per week, including at least three (3) hours per weekend. Grantor shall have a publicly listed nontoll-charge telephone number operated so as to receive and record customer complaint and requests on a twenty four (24) hour basis.

4. Grantee shall maintain sufficient maintenance personnel to respond to repairs relating to outages or other requests for installation or service within the time periods specified in the franchise agreement.

5. Grantee shall provide a telephone system and a sufficient number of office personnel to handle customer calls within the requirements of the franchise agreement.

B. Billing Procedures:

1. Grantee's billing procedures for residential customers shall meet the following minimum requirements:

a. Bills for cable service shall be rendered monthly, unless otherwise authorized by the customer and grantee. The bill shall be mailed on or shortly after its date. All bills shall include a telephone number, street address and mailing address for billing inquiries or disputes.

b. In the event of a dispute between the customer and grantee regarding a bill, grantee shall promptly make such investigation as is required by the particular case and report the results to the customer. In the event the dispute is not resolved to the satisfaction of customer, grantee shall inform the customer of the complaint procedures set forth in the franchise agreement.

c. Bills shall be presented in a clear, concise, accurate and understandable fashion, consistent with Federal law.

d. Grantee may establish an arrangement, for those customers that consent in writing, to pay their bills by electronic funds transfers.

2. Grantee may establish separate billing procedures for commercial accounts. Such billing procedures shall be set out in the written agreement between grantee and the commercial establishment.

3. Grantee shall comply with such other billing requirements as are mutually agreed to in the franchise agreement.

C. Complaint Procedures:

1. Grantee shall receive and acknowledge any customer complaint made in person, by telephone or mail, or referred by Grantor within the time period established in the franchise agreement.

2. Grantee shall make available to the complainant information regarding his/her ability to take the complaint to Grantor's representative if it is not resolved by grantee.

3. Grantor may determine, adjust, settle or compromise any complaint, controversy, dispute or charge arising from the franchise, the franchise agreement or the cable system. Grantor may delegate this authority to the City Manager or his/her designee. If any person is dissatisfied with the decision of such official or officials, such person may appeal the decision to the City Council within ten (10) days of such decision for a final determination, adjustment, settlement or compromise.

D. System Audit:

1. Grantor may require that performance audits of the grantee and grantee's cable system be conducted at intervals specified in the franchise agreement. The purpose of the audit is to verify grantee's compliance with all requirements of this Chapter and the franchise agreement.

2. Upon completion of the audit, grantee shall meet with Grantor to review the results of the audit within thirty (30) days of Grantor's request. Within thirty (30) days of that meeting, Grantor may issue findings with respect to the adequacy of the performance of grantee. If inadequacies are found, Grantor may direct grantee to correct them within specified time periods.

3. The participation by Grantor and grantee in the audit and review process shall not waive any rights they may have under applicable law. (Ord. 514 N.S., 1-17-1995)